Though Justice Neil Gorsuch filed one of the four dissenting opinions in Carpenter v. United States, his opinion reads more like a concurrence than a dissent. In it, he sets forth a property rights-based argument for the protection of cell phone data under the Fourth Amendment and clearly rejects the “Third-Party Doctrine”—the long-standing Supreme Court doctrine that if someone voluntary turns over information to a third party they have no reasonable expectation of privacy in that information.
What are the potential implications of Justice Gorsuch’s reasoning in his Carpenter dissent? What does his dissent mean for privacy advocates? How does the decision in Carpenter align with the Supreme Court’s past decisions on the Fourth Amendment? In this episode of POLICYbrief, Ashley Baker, Director of Public Policy at the Committee for Justice, discusses Carpenter v. US, Justice Gorsuch’s dissent, and the future of privacy.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speaker.
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Learn more about Ashley Baker:
https://www.committeeforjustice.org/ashley-baker
Follow her on Twitter: @andashleysays
https://twitter.com/andashleysays
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Related Links & Differing Views:
The Supreme Court of the United States: “Carpenter v. United States”
https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf
The Atlantic: “What You Need to Know about the Third-Party Doctrine”
https://www.theatlantic.com/technology/archive/2013/12/what-you-need-to-know-about-the-third-party-doctrine/282721/
Lawfare: “Does Carpenter Revolutionize the Law of Subpoenas?”
https://www.lawfareblog.com/does-carpenter-revolutionize-law-subpoenas
American Bar Association: “The Case for the Third Party Doctrine”
https://www.americanbar.org/groups/public_services/law_national_security/patriot_debates2/the_book_online/ch4/ch4_ess2/
City Journal: “Bad Reading, Bad Precedent”
https://www.city-journal.org/html/supreme-court-carpenter-decision-15996.html
Cato Supreme Court Review: “Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment”
https://object.cato.org/sites/cato.org/files/serials/files/supreme-court-review/2018/9/2018-cato-supreme-court-review-4.pdf
Bloomberg Law: “Cracking Open a Can of Worms: Why Carpenter v. United States May Not Be the Privacy Decision That Was Needed ... or Wanted”
https://www.bna.com/insight-cracking-open-n73014477217/
The Federalist Society: “Should the government be able to read your emails?”
https://www.youtube.com/watch?v=zFNFWMtRru8
